Tuesday, December 14, 2010

Pardons. We Got Pardons

OK, so Obama finally found some folks on whom he could sprinkle some of the fairy dust of Presidential grace. Nine of them. Seven were sentenced only to probation.

Russell Dixon was convicted of a liquor violation. Ron Foster of shaving the edges off coins to trick vending machines, convicted back in 1960. Foster did that when he was 18. He's 65 now. Deserving of the pardon, no doubt. But surely there are those with more desperate need. And equally deserving.

Of course, you can't even describe these as the annual Christmas pardons, since Obama didn't issue any last year. But Christmas presents they are, random, certain to stir no controversy, to burn up none of his ever-declining political capital. And that's really a problem. Obama waited longer than any previous Democratic president to issue a pardon. And all he could find was this bunch.

Pardons are, of course, exercises in executive grace. They can also be political theater.

We, even those of us who don't view it as seriously flawed or hopelessly corrupt, know that our system is imperfect. If we're even marginally honest about it, we know that criminal convictions haunt, often years after the fact and long after there's any reason for the stigma. We like to think we individuate, treat each person based on his/her details. But we know better. Easy to class.

And of course, there are those people convicted on the merest shred of evidence, those who were convicted despite legitimate even laudable (albeit legally unavailable) explanations for what they did. And yet the pardon power is used rarely and quixotically. And, once again, as political theater.

Jim Morrison's mug shot

And so it was that down in Florida, Charlie Crist, in his last days as governor, found a worthy candidate for grace in Jim Morrison. Should he have been convicted of (hell, should he even have been charged with) indecent exposure? Probably not. Will this somehow cleanse his reputation? Will he have a more productive life, now? (Ooops, he's been dead for years, so probably not.) Does it matter to anyone except Doors fans? What, exactly, was the point? Is his conviction and arrest the great wrong in Florida's legal history? Does anyone believe that?

And so we come to Abe Lincoln who signed off on the largest mass execution in US history. 38 Santee Sioux were hanged together in Mankato, Minnesota in 1862. There's little question that in the uprising, led by Little Crow, innocent white settlers were brutally murdered. There's little question that the Sioux were having their homes taken away, forced off their land, and that white soldiers were indiscriminate in attacking and killing Sioux who fought and those who did not. (Duane Schultz's Over the Earth I Come: The Great Sioux Uprising of 1862 tells the story well.) But that's not where I'm going with this.

Hanging of the 38 Santee Sioux

Instead, I want to talk about Abe Lincoln.
1862 was not merely the year the Santee went to war. It was also a particularly dark period for the Union in the Civil War. And that year was the brief war. When the fighting was over, General Sibley had captured some 400 men, Santee and "mixed blood." 303 were sentenced to be hanged. It was, they say, more than Lincoln could stomach. He decided, apparently, that there was sufficient evidence to kill only 38. Lincoln knew that commuting sentences for the rest would be unpopular. Still, he did it. Some he pardoned, some died in prison.

I could not afford to hang men for votes.

But if he saved 265, he signed off on the death of 38. And so it was that on December 26, 1862, the day after Christmas (no Christmas pardons here, Christmas killings instead), the 38 were killed in a single mass execution from a single gallows platform. Except not exactly. It seems that only 37 of the 38 were killed. One, whose sentence had been commuted, was inserted into the lot and was killed in the place of one who was supposed to be. And now, it seems, there's a movement to pardon the wrongly killed guy.Robert Elder had the story in yesterday's NY Times.

But one man, historians say, did not belong there. A captured Dakota named We-Chank-Wash-ta-don-pee, often called Chaska, had had his sentence commuted by PresidentAbraham Lincolndays earlier. Yet on the day after Christmas 1862, Chaska died with the others.

It was a case of wrongful execution, Gary C. Anderson, a history professor at theUniversity of Oklahomaand Little Crow biographer, said last week in an interview. “These soldiers just grabbed the wrong guy,” he said.

Although the story of the mass execution in Mankato is well-known locally, scholars say the case of Chaska — spared by Lincoln, then wrongfully executed — has been long overlooked by the federal government and all but forgotten even by the Dakota.

Now, an effort to keep the story alive is taking root on campuses and even on Capitol Hill as the 150th anniversary of the execution, in 2012, approaches. Commemorative events will include symposiums, museum exhibits, monument re-dedications, book publications and an original symphony and choral production.

“It’s time to talk about it and time for people to know about it,” said Gwen Westerman, a professor of English at Minnesota State University at Mankato and a member of the Dakota who is planning to investigate Chaska’s case and the cultural context of the conflict with a class. She says she is hoping her students can “put together some more pieces of the puzzle.”

“Because there is a historical record” for Chaska’s commutation, Ms. Westerman said, “that’s a good place to start.”

A move to award Chaska (pronounced chas-KAY) a posthumous pardon has drawn some initial support. Before his defeat in November, RepresentativeJames L. Oberstar, Democrat of Minnesota, said a federal pardon would be “a grand gesture and one I think our Congressional delegation should support.”

“Senator Franken recognizes that this is a tragic period in history,” said his press secretary, Ed Shelleby. “The senator will continue to look into this incident in the next Congress.”

Obama has, so far, expended his political capital to issue 9 pardons. There are thousands of men and women languishing in prison for extensive crack cocaine sentences when his own Justice Department says that the crack/powder distinction was irrational. Are they all being resentenced? There are innocent men and women. There are men and women who have reformed but are denied jobs and housing and franchise. There are men and women who need help and by all rights deserve it.

I'm not begrudging anyone a pardon. Let Obama and Charlie Crist do feel-good pardon's that serve no particular purpose. It is grace, after all. Portia tells Shylock.

So, while some may be encouraged by the morsels of mercy that President Obama distributes while Santa Claus is in the neighborhood, let us be the first to complain. Shame on you, Mr. President. To date, your clemency "policy" deserves nothing but scorn, slight regard and contempt. Like most presidents before you, you should make pardons (and justice) a year-long concern, and insist that it be the year-long concern of the bureaucrats that are supposed to be working on applications all year long. When there is little evidence that they have more interest in clemency than you, they should be summarily removed, pronto.

The quality of mercy is not strain'd,
It droppeth as the gentle rain from heaven
Upon the place beneath: it is twice blest;
It blesseth him that gives and him that takes:
'Tis mightiest in the mightiest: it becomes
The throned monarch better than his crown;
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway;
It is enthroned in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God's
When mercy seasons justice. Therefore, Jew,
Though justice be thy plea, consider this,
That, in the course of justice, none of us
Should see salvation: we do pray for mercy;
And that same prayer doth teach us all to render
The deeds of mercy. I have spoke thus much
To mitigate the justice of thy plea;
Which if thou follow, this strict court of Venice
Must needs give sentence 'gainst the merchant there.

1 comment:

Tell The Anointed One he can pardon my royal venochie while he's at it. Arrogant SOB.

Although I think he pulled some real boners while he was living at the White House, Slick Willy knew how to use the power he had. Check out his pardons here. The only one that bothered me was a guy he pardoned who was caught with several hundred kilos of Bolivian Marching Powder.

Then there's this whacked out college professor, Gwen Westerman, who is 'investigating' and 'hopes her students...'. You see a pattern emerging here?

Let me explain something. Straight money. Sunday School truth. Anyone who has spent any time at all around the Lakota / Dakota Indians knows for a cold hard fact that:

You never stay out at the reservation after dark because the Indians will shoot at you.

You never go anywhere around the rez unarmed.

Alcohol abuse at the rez is absolutely unbelievable. The Indians will drink until they pass out. When they wake up they'll keep drinking. They won't quit until the liquor and the money have run out.

No one who is in their right mind and knows the Lakota/Dakota Indians knows better than to pardon any Lakota/Dakota Indian for anything, even if he was hung by mistake and is long dead and turned to dust. Look, Franken supports this, and Franken is certifiable. See?

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About Me

Criminal defense lawyer, public defender, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker.
After many years in private practice, I'm now a public defender in the Cuyahoga County Public Defender's Office.
My first career was English Professor. I studied medieval and renaissance English Literature, taught literature, film, and composition. I've been a film critic.
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